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BRAZIL - TOTAL LEGAL INSECURITY AND INSTITUTIONAL
'Government' Temer = political instability, legal insecurity, social regression and international isolation
10/05/2016 - Copyleft
'GOVERNMENT' TEMER = POLITICAL INSTABILITY, LEGAL INSECURITY, SOCIAL REGRESSION AND INTERNATIONAL ISOLATION
LEGAL UNCERTAINTY HAS ALREADY BEEN POINTED OUT NOT LONG AGO, ONE OF THE GREAT BRAZILIAN PROBLEMS, CAUSING INSTABILITY OF RES JUDICATA AND THUS AWAY INTERNATIONAL INVESTORS AND RAISING THE "BRAZIL RISK". FOR WITH THE MILITARY DICTATORSHIP CAME TO BREAK THE PRINCIPLE OF LEGALITY, WHICH THE COMPANY NOTED THE CREATION AND MODIFICATION OF LAWS ACCORDING TO THE CONVENIENCE OF DICTATORS, WHERE THE CITIZEN, SO TO SPEAK, LEAVE HOME WITH A LAW AND RETURNED UNDER THE ANOTHER REGENCY.
BEFORE THIS DARK TIME, TACITURN AND SULLEN RESTA RESISTANCE POLICY IN THE STREETS AND IN PUBLIC SPACES AND THE INSTITUTIONAL.
FRANCISCO FONSECA (PROFESSOR OF POLITICAL SCIENCE AT FGV / EAESP AND PUC / SP)
Unlike what the media massacre does believe, the consolidation of the coup, which takes place since the democratic election of Dilma Rousseff, will lead the country to unthinkable ways until recently: the brutal political instability, whose "governance" can only be given the illegality, illegitimacy and violence; the legal uncertainty, in view of the complete disregard for the Constitution and the factionalism of institutions that should ensure the democratic order; to social regression, with trying to vigorous reduction of social and labor rights; and international isolation, as is already the case in the pronouncements of the international community, with the notable exception of the US.
The invocation of "God-Market" as the "institution" that will stabilize and return to growth and employ with the removal of the elected president is clearly a maneuver that does not hold. First of all because of "market" means a small group of large domestic and foreign especially rentier capitalists. Everything else, such as micro, small and medium entrepreneurs is dismissed outright. Also, workers are seen only as "Brazil cost", whose social and labor rights must be radically reduced. In capitalism, the market - in any setting, to give - needs political stability and legal certainty: all that the coup and reactionary plutocracy (PMDB, PSDB, DEM, FIESP and the like) can not give.
The invocation of "God-Market" as the "institution" that will stabilize and return to growth and employ with the removal of the elected president is clearly a maneuver that does not hold. First of all because of "market" means a small group of large domestic and foreign especially rentier capitalists. Everything else, such as micro, small and medium entrepreneurs is dismissed outright. Also, workers are seen only as "Brazil cost", whose social and labor rights must be radically reduced. In capitalism, the market - in any setting, to give - needs political stability and legal certainty: all that the coup and reactionary plutocracy (PMDB, PSDB, DEM, FIESP and the like) can not give.
International isolation, whose role of the Organization of American States (OAS) and the Inter-American Court of Human Rights, which on 09/05 were with President Dilma, expressing solidarity, and the president of the Supreme Court, Ricardo Lewandowski, warning of the effects of stroke, signal the concern of the international community towards anti-democratic events that have been happening in the Brazilian political / institutional life.
Not enough these aspects, Michel Temer has no more than 2% of voting intentions, as well as opinion polls clearly indicate dissatisfaction with the coup of most Brazilians, a fact omitted by the mainstream media.
Thus, from every angle one can observe the political adventure brought by the coup will lead to social and political instability, legal uncertainty in several dimensions, social retrogression and international isolation. This is the work of the great consortium of Operation Lavajato (whose illegality and selectivity catches the eye); by the Supreme Court (which are crucial omissions); by parties defeated in elections (notably PSDB) in the wake of the bankrupt party system (in which the PMDB is its most complete expression); Fiesp (to press the contempt for social and democratic gains); the conservative middle classes (the exit to the streets unscrewed the smelly manhole their prejudices); and the large commercial media (the coup and haggling are historical, but vigorously redivivos).
Given this time obscure, taciturn and sullen remains political resistance in the streets and public spaces (the high school students of SP are giving us citizenship classes); in institutional spaces (if the STF ministers committed to democracy, but silenced at that time, as well as the belligerent anti-coup parliamentary benches); and a host of social movements, trade unions, community, institutions and individuals and citizens.
This tragedy will allow, from the ashes, born a country able to strengthen their political and social democracy!
writing sourcehttp://cartamaior.com.br/?/Editoria/Politica/-Governo-Temer-instabilidade-politica-inseguranca-juridica-retrocesso-social-e-isolamento-internacional/4/36090
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1 - CONCEPT BRIEF
The Principle of Legal Security aims to bring stability to the legal relations and is divided into two parts: an objective nature and the other of a subjective nature.
The objective nature: deals with the retroactivity of new interpretation of law on the Public Administration.
The subjective nature: is about the confidence of society in the acts, procedures and conduct handed down by the state.
So that the majority doctrine often cite the principle of legal certainty as one of the general principles of democratic rule of law.
2 - HISTORY OF INSTABILITY
Legal uncertainty has already been pointed out not long ago, one of the great Brazilian problems, causing instability of res judicata and thus away international investors and raising the "Brazil risk". For with the military dictatorship came to break the principle of legality, which the company noted the creation and modification of laws according to the convenience of dictators, where the citizen, so to speak, leave home with a Law and returned under the another regency.
The Principle of Legal Security aims to bring stability to the legal relations and is divided into two parts: an objective nature and the other of a subjective nature.
The objective nature: deals with the retroactivity of new interpretation of law on the Public Administration.
The subjective nature: is about the confidence of society in the acts, procedures and conduct handed down by the state.
So that the majority doctrine often cite the principle of legal certainty as one of the general principles of democratic rule of law.
2 - HISTORY OF INSTABILITY
Legal uncertainty has already been pointed out not long ago, one of the great Brazilian problems, causing instability of res judicata and thus away international investors and raising the "Brazil risk". For with the military dictatorship came to break the principle of legality, which the company noted the creation and modification of laws according to the convenience of dictators, where the citizen, so to speak, leave home with a Law and returned under the another regency.
3 - LEGAL CERTAINTY
The Principle of Legal Certainty is not in our Federal Constitution explicitly but implicitly, because there is no provision in the Constitution speaking of legal certainty, and we can extract the same from some constitutional passages, for example, when the it talks about the perfect legal act, res judicata and Law acquired. so noted the concern of our Constitution with the stability of legal relations. Also implicitly the principle of legal certainty is inserted in other constitutional norms, taking as an example the prescription institute where its rules and deadlines serve to bring a minimum of stability for relations.
The Principle of Legal Certainty is not in our Federal Constitution explicitly but implicitly, because there is no provision in the Constitution speaking of legal certainty, and we can extract the same from some constitutional passages, for example, when the it talks about the perfect legal act, res judicata and Law acquired. so noted the concern of our Constitution with the stability of legal relations. Also implicitly the principle of legal certainty is inserted in other constitutional norms, taking as an example the prescription institute where its rules and deadlines serve to bring a minimum of stability for relations.
As we just see the previous paragraph, the Principle of Legal Security is implicitly in the Constitution, however, we find the same principle expressly in Article 2, caput, of Law 9,784 / 99 (Administrative Procedure Act) :
"Art. 2, caput: Public administration will comply, among others, the principles of legality, purpose, motivation, reasonableness, proportionality, morality, full defense, contradictory, legal certainty, public interest and efficiency. "
Pinning the idea of retroactivity of new interpretation of law in its section XIII:
"XIII: Interpretation of the administrative rule in the way that best ensures the service of the public purpose for which it is directed, prohibited retroactive application of a new interpretation."
It is basic knowledge of the people who operate the law that all litigation is bound to inevitably reach its end, establishing res judicata, and, to occur sovereignly res judicata can not revisit that same situation, that is, the time will come that justice will give way to the stability of social relations, creating legal certainty.
4 - VIEWING IN SPECIFIC CASES
When we speak of the Principle of Legal Certainty, often refer to other principles such as administrative good faith venire contra factum proprium (can not the public administration go against their own actions) and others. To visualize how the Principle of Legal Security is closely linked to these other principles, let us look at the following specific cases:
Imagine the situation of a citizen who entered a State entity in 1990, without having been previously approved in a public contest and only now in 2010 the EU Court of Auditors noted the situation "irregular" after considering the request retirement of the same.
Given the above case, the Public Administration can not declare the ownership and appointment of that server, denying retirement and automatically exonerating because can not the public authorities have indefinitely to annul administrative acts (thus generating legal uncertainty) .
then we observe the existence of a conflict between principles (legality Vs legal certainty), since Article 37, II expressly Federal Constitution prohibits the investiture of a public official without the prior approval in a public contest, but on the other hand we observe the existence of an administrative deadline of five years for the Public Administration cancel your actions, found expressly in Article 54, caput of law 9,784 / 99.
"Art. 54, caput: The right of management to cancel the administrative acts arising favorable effects for the recipient declines in five years from the date they were done, unless proven bad faith. "
In this sense there is an understanding of the Superior Courts that once past the administrative statute period of five years the principles of legal and administrative bona fide security will override the principle of legality.
In another case we visualize Mark's situation a citizen that was approved in a public contest, obtaining the first place, with the same tender notice issued expressly the existence of five seats for the same function in which Marcos ran.
We note that not long ago, it was peaceful understanding of the Superior Courts of the successful candidate in an open competition, even within the number of jobs specified in the notice, did not have the subjective right of appointment and tenure, but had rather a " mere expectation of a right "to be appointed and sworn in, on the grounds that the appointment and tenure of the competitive examination would be made on a discretionary basis by the public administration, ie, according to their interests and their demands.
Currently the understanding of the Superior Courts, is that the public administration to provide expressly the number of vacancies in the public notice, self tied in with the candidate for the tender and once this is approved in the number of positions set out in the notice, will then subjective right to the appointment and tenure, is based upon the principles of legal certainty, administrative good faith venire contra factum proprium, not the Public Administration go against their own actions (Understanding this we find expressed in the Supreme information number of Federal Court 520 and informative Higher number of Court of Justice 354).
then passing the discretion of the Public Administration affect only those candidates who have not passed in the number of places established in the call, getting these candidates register reservation.
I come here in this study point out that even though the Superior Courts, given a huge jurisprudential step to ensure the candidate's subjective right within the approved number of positions set out in the notice. Public administration as a means of keeping their "bad" habits, then went on to promote contests exclusively for the fulfillment of the "registration book" in which there is no quantity in vacancies in the announcement and the call and possession of the successful candidate (even in first), will be made on a discretionary basis by the Government.
To curb this practice is currently being processed in the Senate Bill No. 369/2008 authored by Senator Expedito Junior, which prohibits holding public tender aiming exclusively to training registration booking, thus bringing stability to the acts of the Public Administration, ie Legal Security.
To finish our exemplification step, we will analyze a situation in which the Aracaju Prefecture - SE celebrates verbal contract with a particular "Mark Mason" to provide services (reform school), totaling R $ 15,000.00.
According to Article 60, sole paragraph of Law 8,666 / 93 (bidding Law), the verbal agreement between the Public Administration and the particular is null and void law, except in verbal contract small purchases of cash, which itself law specifies:
"Art. 60, sole paragraph: It is null and void verbal contract with the Administration, except the small shopping cash, understood those not greater than 5% (five percent) of the limit laid down in art. 23, II a, this law made in advance scheme ".
"Art. 23, II, to: call - to 80,000.00 (eighty thousand reais). "
However, the public administration may not rely on the principle of legality to evade the obligation to particular, in this example "Mark Mason," although the law requires the invalidity of verbal contract, since the contract value verbal analyzed (R $ 15,000.000) far exceeds the maximum allowed by law for this type of contract (up to 5% of R $ 80,000.00 = R $ 4,000.00).
The majority doctrine considers that in this particular case, the public authorities will be required to indemnify particular, the main foundations of the principles of legal certainty, administrative good faith venire contra factum proprium and the principle of sealing of unjust enrichment.
5 - BRAZIL AS A LEGALLY STABLE COUNTRY
Currently we have a concern not only with the retroactivity of new interpretation of Law on Administrative scope, but a non-retroactivity of the law as a whole, being inconceivable citizens be surprised by new behaviors to past events where citizens can not go back in time to change his act, then being punished for pursuing a State orientation.
Today we can say that Brazil has very gained legal certainty, for the democratic rule of law not only crave the legality of their actions, but also the protection of the legal trust, good faith on state actions and the fulfillment of expectations generated not only the laws but also by judicial decisions. The Brazil, is now being considered as one of the best countries for world investments, and as a consequence its legal stability.
6 - Conclusion
"Art. 2, caput: Public administration will comply, among others, the principles of legality, purpose, motivation, reasonableness, proportionality, morality, full defense, contradictory, legal certainty, public interest and efficiency. "
Pinning the idea of retroactivity of new interpretation of law in its section XIII:
"XIII: Interpretation of the administrative rule in the way that best ensures the service of the public purpose for which it is directed, prohibited retroactive application of a new interpretation."
It is basic knowledge of the people who operate the law that all litigation is bound to inevitably reach its end, establishing res judicata, and, to occur sovereignly res judicata can not revisit that same situation, that is, the time will come that justice will give way to the stability of social relations, creating legal certainty.
4 - VIEWING IN SPECIFIC CASES
When we speak of the Principle of Legal Certainty, often refer to other principles such as administrative good faith venire contra factum proprium (can not the public administration go against their own actions) and others. To visualize how the Principle of Legal Security is closely linked to these other principles, let us look at the following specific cases:
Imagine the situation of a citizen who entered a State entity in 1990, without having been previously approved in a public contest and only now in 2010 the EU Court of Auditors noted the situation "irregular" after considering the request retirement of the same.
Given the above case, the Public Administration can not declare the ownership and appointment of that server, denying retirement and automatically exonerating because can not the public authorities have indefinitely to annul administrative acts (thus generating legal uncertainty) .
then we observe the existence of a conflict between principles (legality Vs legal certainty), since Article 37, II expressly Federal Constitution prohibits the investiture of a public official without the prior approval in a public contest, but on the other hand we observe the existence of an administrative deadline of five years for the Public Administration cancel your actions, found expressly in Article 54, caput of law 9,784 / 99.
"Art. 54, caput: The right of management to cancel the administrative acts arising favorable effects for the recipient declines in five years from the date they were done, unless proven bad faith. "
In this sense there is an understanding of the Superior Courts that once past the administrative statute period of five years the principles of legal and administrative bona fide security will override the principle of legality.
In another case we visualize Mark's situation a citizen that was approved in a public contest, obtaining the first place, with the same tender notice issued expressly the existence of five seats for the same function in which Marcos ran.
We note that not long ago, it was peaceful understanding of the Superior Courts of the successful candidate in an open competition, even within the number of jobs specified in the notice, did not have the subjective right of appointment and tenure, but had rather a " mere expectation of a right "to be appointed and sworn in, on the grounds that the appointment and tenure of the competitive examination would be made on a discretionary basis by the public administration, ie, according to their interests and their demands.
Currently the understanding of the Superior Courts, is that the public administration to provide expressly the number of vacancies in the public notice, self tied in with the candidate for the tender and once this is approved in the number of positions set out in the notice, will then subjective right to the appointment and tenure, is based upon the principles of legal certainty, administrative good faith venire contra factum proprium, not the Public Administration go against their own actions (Understanding this we find expressed in the Supreme information number of Federal Court 520 and informative Higher number of Court of Justice 354).
then passing the discretion of the Public Administration affect only those candidates who have not passed in the number of places established in the call, getting these candidates register reservation.
I come here in this study point out that even though the Superior Courts, given a huge jurisprudential step to ensure the candidate's subjective right within the approved number of positions set out in the notice. Public administration as a means of keeping their "bad" habits, then went on to promote contests exclusively for the fulfillment of the "registration book" in which there is no quantity in vacancies in the announcement and the call and possession of the successful candidate (even in first), will be made on a discretionary basis by the Government.
To curb this practice is currently being processed in the Senate Bill No. 369/2008 authored by Senator Expedito Junior, which prohibits holding public tender aiming exclusively to training registration booking, thus bringing stability to the acts of the Public Administration, ie Legal Security.
To finish our exemplification step, we will analyze a situation in which the Aracaju Prefecture - SE celebrates verbal contract with a particular "Mark Mason" to provide services (reform school), totaling R $ 15,000.00.
According to Article 60, sole paragraph of Law 8,666 / 93 (bidding Law), the verbal agreement between the Public Administration and the particular is null and void law, except in verbal contract small purchases of cash, which itself law specifies:
"Art. 60, sole paragraph: It is null and void verbal contract with the Administration, except the small shopping cash, understood those not greater than 5% (five percent) of the limit laid down in art. 23, II a, this law made in advance scheme ".
"Art. 23, II, to: call - to 80,000.00 (eighty thousand reais). "
However, the public administration may not rely on the principle of legality to evade the obligation to particular, in this example "Mark Mason," although the law requires the invalidity of verbal contract, since the contract value verbal analyzed (R $ 15,000.000) far exceeds the maximum allowed by law for this type of contract (up to 5% of R $ 80,000.00 = R $ 4,000.00).
The majority doctrine considers that in this particular case, the public authorities will be required to indemnify particular, the main foundations of the principles of legal certainty, administrative good faith venire contra factum proprium and the principle of sealing of unjust enrichment.
5 - BRAZIL AS A LEGALLY STABLE COUNTRY
Currently we have a concern not only with the retroactivity of new interpretation of Law on Administrative scope, but a non-retroactivity of the law as a whole, being inconceivable citizens be surprised by new behaviors to past events where citizens can not go back in time to change his act, then being punished for pursuing a State orientation.
Today we can say that Brazil has very gained legal certainty, for the democratic rule of law not only crave the legality of their actions, but also the protection of the legal trust, good faith on state actions and the fulfillment of expectations generated not only the laws but also by judicial decisions. The Brazil, is now being considered as one of the best countries for world investments, and as a consequence its legal stability.
6 - Conclusion
We observed that the principle of legal security is directly linked to fundamental rights and guarantees the rule of democratic state, so we can identify it in various situations of everyday life, especially viewed in exemplification made in this work.
Even in a complex society, susceptible to social, economic and political change is possible, necessary and desirable to achieve-legal certainty because the law aims to plan the behavior bringing social peace, then modify a sentence already unappealable or charge a new interpretation of a situation that has already occurred, undoes so any concept of democratic rule of law.
7 - REFERENCES
DI PIETRO, Maria Sylvia Zanella. Administrative law. 21th. Ed - Sao Paulo:. Atlas 2008.
Meirelles, Hely Lopes. Brazilian Administrative Law. 36th Ed - Sao Paulo:. Malheiros, 2010.
MORAIS, Alexander. Constitutional right. 24th. Ed - Sao Paulo:. Atlas 2010.
Superior Justice Tribunal. Newsletter No. 354 of 28 April to 9 May 2008. Available at: http: //www.stj.jus.br/SCON/infojur/doc.jsp. Accessed: October 6, 2010.
Federal Court of Justice. Newsletter # 520 from 15 to 19 September 2008. Available at: http: //www.stf.jus.br/arquivo/informativo/documento/informativo520.htm#Concurso Public and Right to Appointment - 3. Access: 06 October 2010.
According to NBR 6023: 2000 Brazilian Association of Technical Standards (ABNT), this scientific article published in the electronic journal should be cited as follows: SOUZA, Jefferson Augusto Castelo Branco Furtado. Principle of legal certainty. Content Legal, Brasilia-DF 11 December 2010. Available at: <http://www.conteudojuridico.com.br/?artigos&ver=2.30001&seo=1>. Accessed: May 14, 2016.
source writing conteudojuridico.com.br/artigo,principio-da-seguranca-juridica,30001.html
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